Shiv Bhagwan Tewari and Others vs District Judge, Sitapur

Y.R. Tripathi, J.—This writ petition has been filed for issuance of a writ of certioran quashing the order dated 18.11.1989. passed by the District Judge, Sitapur under subrule (ii) of Rule 12 (ii) of the U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955, hereinafter referred to as the Rules of 1955. It has also been prayed that a mandamus be issued to the opposite parties to appoint the petitioners on Class IV posts.

It appears that a waiting list under Rule 12 of the Rules of 1955, containing the names of 54 candidates was prepared on 8.4.1987. The names of the petitioners appeared respectively at serial Nos. 33, 35 and 36 in that list. By 18.11.1989 i.e. prior to passing of the impugned order, candidates at serial nos. 1 to 29, 31 and 39 had been given appointment. The candidate at serial No.30 was declined appointment on account of his having become overage. On 18.11.1989 the District Judge, Sitpur, in exercise of power under subrule (ii) of Rule 12 of the Rules of 1955 directed for expunction of the names of candidates appearing at serial Nos.30, 32 to 38 and 40 to 54 of the list. His order shows that the candidate at serial No.39 had been given appointment against reservation quota for handicapped persons. The petitioners have challenged the said order of the District Judge, Sitapur on the ground that he, transgressing his jurisdiction, in the garb of revision of the list, has virtually cancelled the same. The impugned order has thus been assailed inter alia on the grounds of its being arbitrary, discriminatory and bad in law.

The opposite party, in the counter affidavit, has justified the impugned order.

The sole point that has been urged by the learned counsel for the petitioner is that the Rules of 1955 do not provide any timelimit during which the waiting list prepared under Rule 12 was to remain operative. He submitted that subrule (ii) of the said Rules of 1955 only empowers the District Judge to carry out revision of the list from time to time with a view to remove therefrom the names of (a) all such candidates as are not likely to receive appointments before attaining the maximum age prescribed in Rule 8, and (b) such candidates as are found guilty of insubordination, misbehaviour or dishonesty in the discharge of their duties in temporary or officiating vacancies, after giving them necessary opportunities to explain their conduct.

The learned counsel for the petitioners urged that the District Judge in the garb of the revision of the list had no jurisdiction or authority to cancel the same.

It cannot be denied that no timelimit is fixed under the Rules of 1955 during which the waiting list prepared under Rule 12 thereof has to remain operative. A perusal of Rule 12 aforesaid shows that what is required in preparation of the waiting list is that it should be of reasonable dimension. Nowhere any guideline has been given about the size of the list. True that no timelimit has been provided for such list being operative, still the fact that the rule requires such list to be of reasonable dimension clearly indicates that the size of the list should not be such that it may continue indefinitely. The fact that the list is required to be of reasonable dimension suggests that it must be prepared keeping in view the vacancies which existed at the time of preparation of the list as also which were likely to occur in near future. The rule does not give a discretion to the appointing authority to prepare the list in such a manner so that it may continue indefinitely. The constitutional discipline also requires that such improper exercise of the discretion, which may result in creating a vested interest in favour of the certain candidates at the cost of fresh candidates who may become eligible for the post subsequently, should be checked. In the case in hand, the waiting list was prepared in 1987 and its revision under Rule 12(ii) of the Rules of 1955 was taken after more than two years but still a number of candidates could not be given appointment. The counter affidavit in this case was filed on 4.10.1991 and the rejoinder affidavit in 1993 but there is nothing to show that after the revision of the list and till the filing of counter and rejoinder affidavits any fresh appointment of Class IV employee was made. It is thus apparent that even after 34 years of the revision of the said list, no fresh recruitment was made. The waiting list, therefore, on the face of it appears to be of unreasonable dimension, which was against the spirit of the Rules. Any such list, if allowed to continue indefinitely, would result in depriving the candidates becoming eligible subsequently of their chance of recruitment against the vacancies, which occur in future. The fact that no resh appointment could be made for about four years of the revision of the list itself suggests that the list was prepared far in excess of the vacancies, which was not at all justified. This Court in Shilesh Chandra Saxena v. State of U.P., 1989 (15) ALR page 13, has held that where no particular period as to the life of the list is provided, the same should be operative only for three years. True that in the instant case, no period as to the life of the list has been prescribed, but considering the guideline given in the rule about the size of the list, it is amply clear that such list should be of reasonable dimension so that it may not result in depriving those candidates who become eligible for competing for the vacancies available in future. In the instant case, evidently the dimension of the list was unreasonable so much so that even after more than two years when the list was revised, a large number of candidates still remained to be appointed. Obviously the list in the present case was prepared against the constitutional discipline and tantamounted to depriving the fresh candidates attaining competitive age subsequently of their chances of recruitment.

The lack of definite guidelines in the Rules of 1955 about the size of waiting list, injudicious, arbitrary and indiscreet exercise of discretion by some of the competent authorities in preparation of such list of unreasonable dimension has from time to time been engaging the attention of this Court on judicial side and this Court in some of the cases has emphasized the need for clarifying the expression ''reasonable dimension'' occurring in Rule 12 of the Rules of 1955, but unfortunately that exercise has not so far been undertaken by the authorities dragging thereby the judice delivery system itself to litigation. The Rules of 1955 were framed in early postadoption days of the Constitution. Since then a large number of Service Rules have been framed indicating the size of select and waiting lists wherever there is provision for their preparation. In my opinion, it is high time for the rule making authority to remove the ambiguity with regard to the interpretation of the expression ''reasonable dimension'' used in Rule 12 of the Rules of 1955 so as to obviate unnecessary controversy and litigation in this regard.

In the backdrop of all that has been said above, I see no good ground for interference in the impugned order in exercise of the discretionary and extraordinary jurisdiction under Article 226 of the Constitution as the same would unnecessarily complicate the issue and perpetuate the waiting list prepared in defiance of the mandate of the Rules of 1955 and the constitutional discipline.

The writ petition is accordingly dismissed.

(Petition dismissed)